Citation Nr: 0310387
Decision Date: 05/30/03 Archive Date: 06/02/03
DOCKET NO. 98-08 729 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to service connection for a low back
disorder.
2. Entitlement to service connection for amnesia.
3. Entitlement to service connection for bilateral hearing
loss.
4. Entitlement to service connection for non-restorable
teeth, dental caries, and periodontal disease, for the
purpose of establishing entitlement to disability
compensation.
5. Entitlement an initial evaluation in excess of 10 percent
for residuals of a 2nd and 4th metatarsal fracture of the
right foot.
6. Entitlement to an initial compensable evaluation for
residuals of a maxillary fracture.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Dillon, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1968 to
February 1970.
This matter arises before the Board of Veterans' Appeals
(Board) on appeal from a March 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Diego, California, that denied entitlement to service
connection for lower back pain, amnesia, loss of teeth, and
bilateral hearing loss. At that time, the RO granted
entitlement to service connection for residuals of a
maxillary fracture, assigning a noncompensable evaluation.
The RO also granted entitlement to residuals of a 2nd and 4th
metatarsal fracture of the right foot, assigning a 10 percent
evaluation.
In January 2003, the RO granted entitlement to service
connection for a crown, tooth #5, and dental caries to teeth
#2, 3, and 15, for the purpose of receiving VA outpatient
dental treatment. In a January 2003 supplemental statement
of the case (SSOC), the RO affirmed the denial of the dental
claim as it pertains to disability compensation.
Except for the dental claim for compensation, the above
issues are the subject of the REMAND herein.
FINDINGS OF FACT
1. The veteran does not have a dental condition other than
treatable carious teeth, replaceable missing teeth, and
periodontal disease.
2. The veteran's loss of teeth is not due to loss of
substance of body of the maxilla or mandible without loss of
continuity.
CONCLUSION OF LAW
The criteria for entitlement to disability compensation for
non-restorable teeth, dental caries, and periodontal disease
have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.381 (2002), § 4.149 (1997), § 4.150 (1997 and 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to assist
There has been a significant change in the law during the
pendency of this appeal. In November 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
redefined the obligations of VA with respect to the duty to
assist and included an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA or filed before
the date of enactment and not yet final as of that date.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir.
2002) (holding that only section 4 of the VCAA, amending
38 U.S.C. § 5107, was intended to have retroactive effect).
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001)
(codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2002)). These regulations, likewise, apply to any claim for
benefits received by VA on or after November 9, 2000, as well
as to any claim filed before that date but not decided by the
VA as of that date. See 66 Fed. Reg. 45,620 (Aug. 29, 2001).
In this case, VA's duties have been fulfilled. VA must
notify the veteran of evidence and information necessary to
substantiate his claim and inform him whether he or VA bears
the burden of producing or obtaining that evidence or
information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b) (2002); Quartuccio v. Principi, 16 Vet. App. 183
(2002). The veteran was notified of the VCAA in a January
2002 development letter from the RO, which also generally
notified him of the criteria and the reasons for the denial
of his claim. He has been informed, therefore, of what the
evidence needs to show for his claim to be granted.
Additionally, the January 2002 VCAA development letter
informed the veteran of the type of information and evidence
necessary to substantiate his claim and of who is responsible
for producing evidence. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2002). The RO obtained the veteran's available service
medical records, and there is no indication that any post-
service dental records exist. Entitlement to service
connection for the purpose of receiving VA outpatient dental
treatment was only recently granted. The veteran has not
stated that he has had post-service dental treatment, and he
did not respond to the January 2002 VCAA development letter.
In an April 2002 letter sent the veteran's address of record,
the RO requested the veteran adequately identify records and
documentation surrounding his worker's compensation claim,
but the letter was returned as undeliverable. The January
2003 SSOC was returned as undeliverable, and Board
correspondence from April 2003 was also returned as
undeliverable. The veteran has yet to provide a new mailing
address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993).
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2002). The June 1998 dental and oral examination identified
the veteran's current dental disabilities, and they are the
type that can only be service-connected for compensation
purposes if they are a result of loss of bone to the maxilla
or mandible. Here, the competent evidence does not show
maxillary or mandibular bone loss, which would warrant
further development of this claim.
An additional examination is therefore unnecessary. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran).
The requirements of the VCAA have been met. Although the
appeal commenced prior to the enactment of the VCAA, this is
not a case in which the VCAA has been applied in the first
instance, as evidenced by the January 2003 SSOC.
II. Service connection
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. § 3.303(a) (2002).
Treatable carious teeth, replaceable missing teeth, dental or
alveolar abscesses, periodontal disease (pyorrhea), and
Vincent's stomatitis were defined as non-disabling
conditions, and could be considered service-connected solely
for the purpose of determining entitlement to dental
examinations or outpatient dental treatment. 38 C.F.R.
§ 4.149 (1997). This regulation was removed, but the
substance of the regulation can now be found at 38 C.F.R.
§ 3.381(a) (2002), which provides that treatable carious
teeth, replaceable missing teeth, dental or alveolar
abscesses, and periodontal disease will be considered
service-connected solely for the purpose of establishing
eligibility for outpatient dental treatment as provided in
Sec. 17.161. 64 Fed. Reg. at 30,393 (June 8, 1999). See
Karnas v. Derwinski, 1 Vet. App. 308 (1991) (where the law
and regulations change while a case is pending, the version
more favorable to the appellant applies, absent congressional
intent to the contrary).
Although the RO did not cite to a specific regulation in the
January 2003 SSOC, there is no affirmative evidence to
suggest the RO did not consider the change in the pertinent
regulations. In any event, as there is no substantive
change that would affect the pending claim, the Board finds
that adjudication of this appeal, without referral to the RO
for initial consideration, poses no risk of prejudice to the
veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
The June 1998 VA dental and oral examination revealed the
presence of multiple non-restorable teeth, dental caries,
and periodontal disease. The regulations as set forth
above, however, make it clear that these are not disabling
conditions for which service connection may be granted for
compensation purposes. The June 1998 VA examination report
is the only post-service medical evidence of record, and it
does not indicate the presence of any other dental
condition.
The loss of teeth can be service connected for compensation
purposes only if such loss is "due to loss of substance of
body of maxilla or mandible without loss of continuity."
See 38 C.F.R. § 4.150, Diagnostic Code 9913 (1997, 2002);
Woodson v. Brown, 8 Vet. App. 352, 354 (1995).
The veteran is service-connected for residuals of a
maxillary fracture, rated as zero percent disabling.
Although the June 1998 examiner diagnosed status post jaw
fracture, he noted that it was by patient history and that
there was no evidence of a fracture. Regardless, the
veteran is only service-connected for residuals of a
maxillary fracture, not for any bones loss to the maxilla,
and the competent medical evidence does not reflect that
tooth loss was a result of bone loss to the maxilla or
mandible.
Consequently, since there has been no medical evidence of a
dental disability for which service connection for
compensation purposes may be granted, the veteran's claim
for service connection for compensation purposes must be
denied.
ORDER
Entitlement to service connection for non-restorable teeth,
dental caries, and periodontal disease, for the purpose of
establishing entitlement to disability compensation, is
denied.
REMAND
A remand is required for compliance with the duty to assist
provisions contained in the Veterans Claims Assistance Act of
2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107
(West 2002); 38 C.F.R. § 3.159 (2002). Although the Board
sincerely regrets the additional delay, it is necessary to
ensure that there is a complete record upon which to decide
the veteran's claims so that he is afforded every possible
consideration. As discussed below, the Board finds that
examination is necessary to decide the remaining claims.
A medical examination must consider the records of prior
medical examinations and treatment in order to assure a fully
informed decision. Caffrey v. Brown, 6 Vet. App. 377, 381
(1994). The report from the June 1998 VA examination for
audio impairment indicates that there were no records
available for review. The examination report is therefore
inadequate.
With regard to the claim of entitlement to an initial
compensable evaluation for residuals of a maxillary fracture,
the June 1998 VA examination for dental and oral disorders is
also inadequate for failure to review the claims file. The
examination should be conducted with review of the veteran's
claims folder by the medical examiner (and acknowledgment of
its receipt and review). See Snuffer v. Gober, 10 Vet. App.
400, 403 (1997) (In increased rating case, Board's reliance
upon medical examination conducted without clear indication
of review of claims folder, affirmed, because disorder shown
to be asymptomatic at the time of the examination).
Additionally, the examination must contain findings that
address the specific diagnostic criteria under consideration.
Beverly v. Brown, 9 Vet. App. 402, 406 (1996). In this case,
the criteria under 38 C.F.R. § 4.150, Diagnostic Code 9916,
was not addressed.
The June 1998 VA examination for mental disorders disclosed
some loss of short-term and long-term memory. The examiner,
however, generally addressed the claim of entitlement to
service connection for a psychiatric disorder, without
specifically addressing whether amnesia was present, and, if
so, whether it was a distinct disability or a symptom of the
diagnosed mild organic brain syndrome. See Wisch v. Brown, 8
Vet. App. 139, 140 (1995) (examiner must specifically address
the alleged disorder; the examiner's silence is insufficient
to show the lack of symptomatology). Therefore, the June
1998 mental disorders examination report, as it relates to
the claim of entitlement to service connection for amnesia,
is insufficient.
The report from the June 1998 VA examination of the spine
includes a medical history detailing an in-service back
injury from a 1969 motor vehicle accident. Although a
current lumbar disability was diagnosed, the examiner did not
render an opinion as to whether the current back disability
was related to service.
The June 1998 VA examination of the spine also included an
examination of the veteran's right foot. The examination
report, however, does not address the criteria under
38 C.F.R. § 4.71a, Diagnostic Code 5284 and fails to account
for other regulatory provisions that may have an impact upon
the rating. See VAOPGCPREC 9-98; DeLuca v. Brown, 8 Vet.
App. 202, 205-207 (1995).
As the case must be remanded for the foregoing reasons, the
RO should again attempt to obtain the veteran's Workman's
Compensation records, as well as his treatment records for a
low back disorder from Dr. Mason in San Marcos.
To afford the veteran due process, the case must be remanded
for the following:
1. Make arrangements to obtain the
veteran's Workman's Compensation records
concerning low back injuries in 1990 and
1994 and his treatment records from Dr.
Mason in San Marcos for a low back injury
in 1998.
2. Schedule the veteran for VA
examinations, as specified below. The
claims file and a copy of this remand must
be made available to and reviewed by the
examiners prior to the requested
examinations. The examiners should
indicate in the report that the claims
file was reviewed.
All necessary tests should be conducted
and the examiners should review the
results of any testing prior to completion
of the reports.
The medical rationale for the opinions
expressed should be included in the
examination reports.
Mental Disorders Examination
The examiner should specifically render
an opinion as to the date of onset and
etiology of any current amnesia disorder.
The physician should determine whether it
is as least as likely as not that any
current amnesia disorder had its onset in
service and/or is related to an in-
service disease or injury. If amnesia is
present but is merely a symptom of the
veteran's service-connected organic brain
syndrome with memory loss due to head
trauma, rather than a separate
disability, the examiner should so state.
Spine Examination
The examiner should specifically render
an opinion as to the date of onset and
etiology of any current low back
disorder. The examiner should determine
whether it is as least as likely as not
that any current low back disorder had
its onset in service and/or is related to
an in-service disease or injury, as
opposed to any post-service back injuries
in 1990, 1994, and 1998, as discussed on
VA examination in June 1998.
Audio Examination
The examiner should specifically render
an opinion as to the date of onset and
etiology of any current hearing loss.
The examiner should determine whether it
is as least as likely as not that any
current hearing loss had its onset in
service and/or is related to an in-
service disease or injury, including any
noise exposure.
Maxillofacial Examination
The examiner should identify all
residuals attributable to the veteran's
service-connected residuals of a
maxillary fracture.
The examiner should assess whether
malunion or nonunion of the maxilla has
resulted in slight, moderate, or severe
displacement.
Any indications that the veteran's
complaints or other symptomatology are
not in accord with physical findings on
examination should be directly addressed
and discussed in the examination report.
Foot Examination
The examiner should identify all
residuals attributable to the veteran's
service-connected residuals of a 2nd and
4th metatarsal fracture of the right foot.
The examiner should assess whether the
foot injury is best described as
moderate, moderately severe, or
moderately severe. If the veteran has
actual loss of use of the foot, the
examiner should so indicate.
The examiner should also state whether or
not the veteran has any malunion or
nonunion of the tarsal or metatarsal
bones, and if so, whether it is moderate,
moderately severe, or severe.
The examiner should note detailed range of
motion measurements for the right foot and
should state what is considered normal range
of motion.
Whether there is any pain, weakened movement,
excess fatigability or incoordination on
movement should be noted, and whether there
is likely to be additional range of motion
loss due to any of the following should be
addressed: (1) pain on use, including during
flare-ups; (2) weakened movement; (3) excess
fatigability; or (4) incoordination.
The examiner is asked to describe whether
pain significantly limits functional ability
during flare-ups or when the right foot is
used repeatedly. All limitation of function
must be identified. If there is no pain, no
limitation of motion and/or no limitation of
function, such facts must be noted in the
report.
Any indications that the veteran's
complaints or other symptomatology are
not in accord with physical findings on
examination should be directly addressed
and discussed in the examination report.
3. The veteran must be given adequate
notice of the requested examinations, and
he is hereby advised that failure to
cooperate or to report for any scheduled
examination without good cause could
result in an adverse decision. If the
veteran fails to report for the
examinations or fails to cooperate in any
way, this fact should be documented in
the claims folder and his claims should
be adjudicated with consideration of
38 C.F.R. § 3.655. A copy of all
notifications must be associated with the
claims folder.
4. Thereafter, review the claims folder
and ensure that all of the foregoing
development have been conducted and
completed in full. Ensure that the
medical reports are complete and in full
compliance with the above directives. If
the reports are deficient in any manner
or fail to provide the specific opinions
requested, they must be returned to the
examiners for correction. 38 C.F.R.
§ 4.2 (2002); see also Stegall v. West,
11 Vet. App. 268 (1998).
5. Review the claims file and ensure
that no other notification or development
action, in addition to those directed
above, is required by the VCAA. If
further action is required, the RO should
undertake it before further adjudication
of the claims.
6. Readjudicate the veteran's claims on
appeal, with application of all
appropriate laws and regulations, and
consideration of any additional
information obtained as a result of this
remand. If the decision with respect to
the claims on appeal remains adverse to
the veteran, he and his representative
should be furnished an SSOC and afforded
a reasonable period of time within which
to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter that
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999). The purposes of this
REMAND are to obtain additional information and comply with
due process considerations. No inference should be drawn
regarding the final disposition of these claims as a result
of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
In the section entitled "Representation before VA," filing
a "Notice of Disagreement with respect to the claim on or
after November 18, 1988" is no longer a condition for an
attorney-at-law or a VA accredited agent to charge you a fee
for representing you.